Adams & Ors v Atlas International Property Services Ltd & Ors, Court of Appeal - Queen's Bench Division, December 05, 2016, [2016] EWHC 3120 (QB)

Issuing Organization:Queen's Bench Division
Actores:Adams & Ors v Atlas International Property Services Ltd & Ors
Resolution Date:December 05, 2016
 
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Case No: HQ13X03811 & HQ14X02671

Neutral Citation Number: [2016] EWHC 3120 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 05/12/2016

Before:

Mr Justice LAVENDER

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Between:

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Peter Knox QC (instructed by Carter Lemon Camerons LLP) for the Claimants

David Turner QC and Ben Smiley (instructed by Alberto Perez Cedillo) for Miguel Ángel Aroca Seiquer and Aroca Seiquer & Asociados SL

Hearing dates: 5, 6, 10, 11, 12, 13, 14, 17, 18, 19 and 21 October 2016

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JUDGMENTMr Justice Lavender:

(1) Introduction and Parties

  1. The Claimants were purchasers of properties in Spain who paid the purchase price, but did not acquire title to their properties. They now sue the English agents and the Spanish lawyers who were involved in the purchases, alleging negligence, breach of fiduciary duty and unlawful means conspiracy.

  2. These two actions concern 10 apartments or chalets (``the Properties'') at three developments (``the Developments'') near Torrevieja, near Alicante, in Spain which were among those carried out by a Spanish development company called Desarrollo y Tecnologia de Centros Vacacionales SL (``Desarrollo'').

  3. The Properties were marketed in the United Kingdom by two English companies, Atlas International Property Services Limited (``Atlas'') and Iberian International Limited (``Iberian''). Atlas and Iberian (``the Agents'') acted as agents of Desarrollo, received the initial instalments of the purchase price from the Claimants, and also provided services to the Claimants. They are now in liquidation. Save for making and then abandoning a jurisdictional challenge, they have played no part in these proceedings.

  4. The Claimants are 14 individuals, and the personal representatives of 2 more individuals, who on various dates between 2003 and 2005 contracted to buy the Properties from Desarrollo. (In the case of Mr. & Mrs. Frost, their contract was initially with another company, Promociones Internacionales Immobiliaria Zenisol SL, but it was agreed that nothing turns on that.) The Claimants are (in alphabetical order):

    (1) Roger Keith Adams, a building contractor, and his wife, Sonia Louise Adams, from Devon. They agreed to buy a chalet in phase III of the Bosque de Las Lomas development. The Agent was Atlas.

    (2) Ronan Patrick Dunning, the governor of works at a prison near Dublin. He agreed to buy a chalet in phase III of the Bosque de Las Lomas development. The Agent was Atlas.

    (3) Stuart Granville Forrester, a retired management consultant and now part time driver, and his wife, Lynda Mary Forrester, from Porthcawl. They agreed to buy a chalet in phase II of the Bosque de Las Lomas development. The Agent was Atlas. (After they had moved into their chalet, it was found to have structural problems, and they agreed with Desarrollo to exchange it for another chalet in the Bosque de Las Lomas development.)

    (4) Ronald Frederick Frost, a retired plumber, and his wife, Christine Frost, from South Yorkshire. They agreed to buy a property in the Bosque de Las Lomas development. The Agent was Atlas.

    (5) John Edward Hope, a pipefitter, and his wife, Helen Elizabeth Hope, from Wallsend. They agreed to buy a chalet in phase III of the Bosque de Las Lomas development. The Agent was Iberian.

    (6) Wendy Isobel Stubington, a housewife, from County Down in Northern Ireland. She agreed to buy two apartments in phase II of the Triana development at Colinas de la Zenia. The Agent was Atlas.

    (7) Ian Whyte, a retired offshore construction manager, and his wife, Alison Margaret Whyte, a retired accounts assistant, from Aberdeenshire. They agreed to buy a chalet in the Colinas del Lago Fase development, but when this was not built they agreed instead to buy a chalet in phase III of the Bosque de Las Lomas development. The Agent was Atlas.

    (8) Terrence George Williamson, an electrician, and his wife, Sharon Linda Williamson, from Sutton in Surrey. They agreed to buy a chalet in the Colinas del Lago Fase development, but when this was not built they agreed instead to buy a chalet in phase III of the Bosque de Las Lomas development. The Agent was Iberian.

    (9) Stuart Winter and Andrea Cartwright, as personal representatives of their late parents, Edward and Beryl Winter. When I refer in this Judgment to the Claimants, I include the late Mr. & Mrs. Winter, who agreed to buy a chalet in phase III of the Bosque de Las Lomas development. The Agent was Atlas.

  5. Between April 2002 and July 2005, the Claimants each paid the purchase price for their Property in instalments. On payment of the final instalment (which was referred to as ``completion''), the Claimants received the keys to their Properties and began to occupy them. But Desarrollo did not execute transfers of the Properties to the Claimants.

  6. The Properties turned out to be subject to mortgages in favour of certain banks (``the Banks''), which prevented the execution of clean transfers and the subsequent registration of the Claimants' title. Proceedings were brought against Desarrollo, but Desarrollo did not redeem the mortgages or execute transfers. Instead, Desarrollo became insolvent. The Banks began steps to repossess the Properties, and most of the Claimants gave up possession. Mr. & Mrs. Hope and Mr. & Mrs. Whyte repaid the mortgage debt themselves and so obtained good title to their Properties.

  7. By these two actions, commenced on 26 July 2013 and 1 July 2014, the Claimants bring various claims against the following 5 Defendants:

    (1) Atlas.

    (2) Iberian.

    (3) Aroca Seiquer & Asociados SL, a Spanish company which provides legal services, and which accepts that it was retained by the Claimants in connection with the Properties. Between 1991 and 2010, it was known as Atlastax Internacional SL, and I will refer to it as ``Atlastax.''

    (4) Miguel Ángel Aroca Seiquer (``Sr. Aroca''), a Spanish lawyer, who specialises in property transactions. He is (indirectly) one of the owners of Atlastax, as well as its director and employee. He did not personally meet any of the Claimants, save for one meeting in 2007 with Mr. & Mrs. Frost. There is a dispute as to whether the Claimants retained Sr. Aroca or Atlastax in connection with their purchases. As at trial, I will use the expression ``Aroca'' to refer to whichever of Sr. Aroca or Atlastax was retained by the Claimants.

    (5) Aroca Seiquer & Asociados. It is now accepted that this was not a separate legal entity, but a trading name. Sr. Aroca and Atlastax claim that it was a trading name of Atlastax. The Claimants say that it was the trading name of Sr. Aroca.

  8. For limitation purposes:

    (1) The proceedings against the Agents and Atlastax commenced on 26 July 2013, when the Claim Form in the first action was issued.

    (2) The proceedings against Sr. Aroca commenced on 1 July 2014, when the Claim Form in the second action was issued.

    (2) Claims and Issues

  9. The Claimants' case against Aroca became more focused as the trial progressed. It can be summarised as follows:

    (1) In conspiracy:

    (a) Aroca conspired with the Agents, as a result of which the Claimants have lost the money which they paid for the Properties.

    (b) Either:

    (i) this claim against Aroca is not statute-barred, because of deliberate concealment (see section 32 of the Limitation Act 1980); or

    (ii) if this claim is statute-barred, the Claimants have a substitute claim against Aroca for negligence in failing to advise the Claimants to sue Aroca before the limitation period expired.

    (2) In negligence or breach of fiduciary duty, in respect of the period before ``completion'':

    (a) The Claimants retained Aroca before ``completion.'' This is disputed.

    (b) Aroca was negligent prior to ``completion'' in:

    (i) failing to warn the Claimants that there was no bank guarantee in place as required by Spanish law;

    (ii) failing to warn the Claimants that there was no proof that Desarrollo was able to pass on an unencumbered title;

    (iii) failing to advise the Claimants not to pay anything in the absence of such a bank guarantee and such proof; and

    (iv) failing to take reasonable steps to ensure before the purchase monies were paid that Desarrollo provided the required bank guarantee and had in place arrangements which meant that Desarrollo could pass an unencumbered title.

    (c) Aroca was in breach of fiduciary duty prior to ``completion'' by reason of the same failings, which resulted from Aroca either:

    (i) actively preferring the Agents' or Desarrollo's interests to; or

    (ii) allowing those interests to influence its performance of,

    its duties to the Claimants.

    (d) But for this negligence or breach of fiduciary duty, the Claimants would not have paid the whole of the purchase price. Aroca contends that in fact the Claimants, if they had received the advice which it is said that they should have received, would have paid the whole of the purchase price, but that they would have received good title to the Properties.

    (e) In relation to limitation, the Claimants again say that:

    (i) these claims against Aroca are not statute-barred, because of deliberate concealment (see section 32 of the Limitation Act 1980); or

    (ii) if these claims are statute-barred, the Claimants have a substitute claim against Aroca for negligence in failing to advise the Claimants to sue Aroca before the limitation period expired.

    (3) In negligence or breach of fiduciary duty, in respect of the period after ``completion'':

    (a) The Claimants do not allege that more could have been done to pursue claims against Desarrollo.

    (b) Instead, the Claimants allege that Aroca was negligent on and after ``completion'':

    (i) in advising the Claimants that their title deeds would be issued within 6-8 or 7-9 months, and thereby wrongly advising that everything was in order;

    (ii) in failing to advise the Claimants that it was wholly uncertain whether registration would take place...

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